Date: 20051125
Docket: IMM-3245-05
Citation: 2005 FC 1598
Ottawa, Ontario, the 25th day of November
2005
PRESENT: THE
HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
LUZ
ALDA GONZALEZ CHAVEZ
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
BLAIS J.
[2]
The applicant is a
57-year-old citizen of Peru. She ran a grocery store with her husband in Lima.
On February 16, 2002, the couple was accosted for the first time by
alleged members of the Shining Path (SP), who demanded money from the couple to
fund the harvest of yucca in Pucallpa. They were harassed for the next ten months.
[3]
The applicant alleges
that she and her husband moved and changed their telephone number to put an end
to the SP’s harassment. In the first week of December 2002, the
applicant’s husband was threatened by an SP member who, armed with a machete,
ordered him to make his monthly payments.
[4]
On February
24, 2003, the applicant’s husband was beaten and robbed and received death
threats. The applicant lodged a complaint with the police in Lima. She
separated from her husband, as she felt that staying with him was too risky.
The applicant left Peru on October 15, 2003.
[5]
At the second hearing,
the applicant told the Board that her family had just been the target of a
terrorist attack and that her mother had died as a result of her wounds.
ISSUE
1. Does the Board’s decision
violate the principles of natural justice because extrinsic evidence was used?
ANALYSIS
- Does the
Board’s decision violate the principles of natural justice because
extrinsic evidence was used?
[7]
The Board justified
its comments by referring to the documentary evidence. However, following a
review of the documentary evidence submitted by both parties, I cannot find
where the Board came across this information, except for the reference to state
emergency measures. The documentary evidence adduced does not mention that
anti-terrorist bases were reactivated or bounties on SP members were being
offered.
[8]
In Shah v. Canada
(Minister of Employment and Immigration) (1994), 170 N.R. 238,
Hugessen J.A. said at paragraph 2 that if an immigration officer relies on “extrinsic evidence, not brought forward by the
applicant”, the applicant must be given an opportunity to respond to the
evidence.
[9]
In Dasent v. Canada
(Minister of Citizenship and Immigration),
[1995] 1 F.C. 720, [1994] F.C.J. No. 1902,
Rothstein J. further defined the meaning of the term “extrinsic evidence, not brought forward by the
applicant” at paragraph 22:
In the case at bar, having regard to
the words "not brought forward by the applicant" used by Hugessen
J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi,
I interpret the term "extrinsic evidence not brought forward by the
applicant" as evidence of which the applicant is unaware because it
comes from an outside source. This would be evidence of which the applicant has
no knowledge and on which the immigration officer intends to rely in making a
decision affecting the applicant.
[Emphasis added.]
[10]
At paragraph 23, he
added that the point is “whether the
applicant had knowledge of the information so that he or she had the
opportunity to correct prejudicial misunderstandings or misstatements”.
[11]
In my view, the
Board’s decision was influenced by extrinsic evidence relating to measures
taken by the Peruvian authorities to enhance security. Failing to disclose
extrinsic information gives the impression that an injustice was committed, and
I cannot find that this breach of the principles of natural justice was
negligible and did not have an appreciable impact on the final decision.
[12]
For these reasons, I
feel that the Court must intervene and set aside the Board’s decision.
ORDER
THE COURT ORDERS that
·
The application for
judicial review be allowed and the decision be referred to the Refugee
Protection Division for redetermination in light of this order;
·
No question be
certified.
“Pierre Blais”
Certified true translation
Jason Oettel
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